Majority
p. 140Heath and another against Ross.
Headnote
A patent for 4thdofaD¿tm! fehnofpaí untinhe S«i reiates^alk as between the ¡parties* so- as to vest the title from^hWate; te^may mainfromthe 4t¿Wand 28th of December,'by persons having bo , title or, But-^he do^ bling^a is^admitird dftbt!iirfUpersons, not par-Slaving any right.THIS was an action- of trover, for a' quantity of timber,, tried at the Essex circuit, .in June last, before his honour the Ghief Justice. :
^ The plaintiffs produced a-patent to. them for a lot of latid,' comprehending the premises on which ‘the timber was euty dated December 4v 1810, and Which passed the secretary’s office . , :• . ' , . , - • . ' 1 . , , ,. ,• the2Sth oFF)eccmber,l310. . ' . -
. A witness testified that tie began to cutxpme timber on thq land the, last ot rNooember4 J8I0, and continued to cut, until January following ;; that,he, contracted to deliver 1.0,OOTt.' °f timber to the defendant, on the shore .of the lake; .that. both he and the defendant supposed that the' loti belonged to the people óf thestaté,. and that ih January, or February, ■ 1811, the 1 ■ . ' .. ’ - ■ , • ’ 1 ' ■ „ 1 -defendant went to Albany to purchase the lot for the witness, but'found • thát it bad been conveyed to the. plaintiffs.*' Tbé. witness cut 11,000 feet,, of which; 8,000 feet were delivered on the. shore. The whole-quantity, except .about- 4,000 feet, ', jv<£s cut and drawn out, .before the 28th of December, "181Ó. The defendant, before he 4’boti" away the timber, had notice from the plaintiffs that it was their property. '
' The jury .found a verdict for the' plaintiffs,, for 570 dolíais, subject to the opinion of the court on a case containing the-above fácts yand-it, was agreed, that if the .court "should be of opinion that the title to the lot was- in the plaintiffs on the 4th of December^ 181 Oyarid they were éntitled to. the timber on, the shore, that thenthe. verdict was to stand; but if the court should be of opinion that the title was not vested in the plaintiffs, until ttie'28th of December, 1810, that thenthe amount of the verdict should be reduced to. $215 dollars/&c..
The case was submitted to the court,, without argument*
This ,is an action ,of ‘'troverr to'recover the Valúe of a quantity of timber,, and the principal question, for the purpose of-ascertaining the amount1 of damages, is to determine when the title to the land upon whicti the timber Was cut, -became vested in the plaintiffs. The patent granted to. them
p. 141
bears date the 4th day of December, 1810, and passed the secretary’s office on the 28th day of the same month; and the principal part of the timber was cut between these two periods. According to the usage and practice at the secretary’s office, the patent is dated at the time when the grant was ordered by the commissioners of the land-office, and this must be taken to be the time when the contract for the land was made. As between the parties to the grant, when the title is consummated by all the necessary forms, it will relate back to the date; but this relation, which is a fiction of law, is never to be adopted when third persons, who are not parties or privies, will be prejudiced thereby. But the application of this fiction to the case before us, will produce no such result; for the defendant, and. the person from whom he purchased the timber, knew that neither of them had any title to the lot, or right to cut the timber. They both supposed it belonged to the people of this state, and afterwards made application to purchase it, which was a full recognition of their title; and the plaintiffs having obtained this title by a grant, which, as between them and the people, would relate back to a time before which any of the timber was cut, must draw after it a right to the timber also. The people can have no claim upon the defendant for this timber, and the injury is without redress, unless the plaintiffs’ claim can be supported. The doctrine of relation, as understood and recognised, both in our own and in the English courts, is applicable to this case, and makes the plaintiffs’ title relate back to the date of the patent. ( 1 Johns. Cas. 85 . Vin. Ab. tit. Relation, 288—9. The plaintiffs are, accordingly, entitled to judgment for 570 dollars.
Judgment for the plaintiffs.